EXHIBIT 10.6
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "AGREEMENT") is
entered into this 10th day of January, 2002, between Atlantic Premium Brands,
Ltd., a Delaware corporation (the "COMPANY") and Alan F. Sussna ("EXECUTIVE").
RECITALS
WHEREAS, the Company is engaged in the business (the "BUSINESS") of
distributing, marketing and selling prepared food products and related products
and services, and Executive is skilled and experienced in the Business.
WHEREAS, on October 29, 1996, the Company and Executive entered into an
Employment Agreement (the "ORIGINAL AGREEMENT").
WHEREAS, pursuant to the terms of that certain Limited Waiver of Covenants
Under and Amendment to Senior Subordinated Note and Warrant Purchase Agreement
(the "BOCP AMENDMENT") dated as of April 13, 2001 among the Company, its
subsidiaries and Banc One Capital Partners, LLC ("BOCP"), the Company may not
enter into any renewal, automatic or otherwise, of the Original Agreement or any
new or replacement employment agreement, including this Agreement, with
Executive without the prior written approval of BOCP.
WHEREAS, the Company and Executive desire to amend and restate the
Original Agreement effective as of March 16, 2002 (the "COMMENCEMENT DATE"),
subject to BOCP's approval.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
agreements and promises contained herein, the parties agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ Executive and Executive
hereby accepts employment by the Company, subject to the terms and conditions
set forth in this Agreement.
2. TERM OF EMPLOYMENT. Commencing upon the Commencement Date, the parties
acknowledge that Executive shall be an "AT-WILL" employee and that either
Executive or the Company may terminate Executive's employment hereunder at any
time, with or without cause, subject to the provisions set forth in SECTION 5
and SECTION 8. The period commencing on the Commencement Date and continuing
through the Termination Date (as defined in SECTION 9) is referred to as the
"EMPLOYMENT PERIOD."
3. TITLE AND DUTIES. During the Employment Period, Executive's title shall
be President and Chief Executive Officer of the Company and he shall possess
such powers and duties as the Board of Directors of the Company (the "BOARD OF
DIRECTORS") may prescribe from time to time, consistent with such powers and
duties as are normally incident to such positions, as provided in the by-laws of
the Company and in accordance with the Delaware General Corporation Law.
Executive shall justly and faithfully discharge his duties and responsibilities
in a diligent manner, devoting such time and attention to the affairs of the
Company as he shall reasonably determine to be necessary and appropriate, and
shall comply with the reasonable rules, regulations and policies of the Company.
During the Employment Period, Executive shall report to the Board of Directors.
4. COMPENSATION. Subject to the following provisions of this Agreement,
during the Employment Period, Executive shall be compensated for his services as
follows:
(a) Base Amount. During the Employment Period, Executive shall
receive from the Company an annual salary, payable in accordance with the
regularly established payroll policy of the Company, in an amount equal to
$367,593 (the "BASE AMOUNT"). The Base Amount shall be subject to normal
payroll deductions applicable to all employees of the Company.
(b) Bonus Payment. In addition to the Base Amount, with
respect to 2002 and each year thereafter that commences during the
Employment Period, Executive shall be eligible to receive an annual lump
sum bonus payment from the Company of up to 50% of the Base Amount (the
"BONUS"), with the Bonus, if any, to be based upon the standards and
criteria established by the Compensation Committee of the Board of
Directors and attached hereto as Exhibit 4(b). The determination of
whether the standards and criteria have been met in any given year, or
partial year, will be determined by the Compensation Committee in its
reasonable discretion, and any such determination for any fiscal year of
the Company will be determined within 30 days after completion of the
annual audit for that year. If any Bonus is payable with respect to a
given year, or partial year, such Bonus shall be paid to Executive within
30 days of the determination thereof. If any Bonus becomes payable upon a
termination of Executive's employment hereunder by the Company other than
for "JUST CAUSE," any Bonus for the partial year ending on the Termination
Date shall be determined by the Compensation Committee within 30 days of
the Termination Date.
(c) Benefit Plans, Additional Benefit.
(i) During the Employment Period, Executive shall be
entitled to immediately and fully participate in any profit sharing
plan, retirement plan, group life insurance plan or other insurance
plan or medical expense plan maintained by the Company or any
subsidiary of the Company for its executive employees (the "BENEFIT
PLANS"). Executive's participation in the medical Benefit Plans
shall include coverage for his spouse and dependents. During the
Employment Period, Executive will apply the cash allowance provided
in SECTION 4(c)(ii) to pay the necessary premiums of those Benefit
Plans that provide health, dental, disability or life insurance
coverage to Executive, his spouse and
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dependents. The Benefit Plans are subject to change from time to
time at the sole discretion of the board of directors of the company
maintaining such plans, provided that in any such event, the Company
shall provide a substitute plan or other form of compensation that
provides substantially the same or greater benefits as then enjoyed
by Executive and his spouse and dependents, as applicable.
(ii) Every month during the Stipend Period (as defined
in SECTION 9), the Company shall pay to Executive a cash allowance
of $3,000, which Executive may use to pay expenses relating to his
employment, including but not limited to benefits premiums,
accounting fees, financial advisory fees, car payments, and dues, as
determined in his sole discretion.
(d) Vacation. For each year of the Employment Period,
Executive shall be entitled to take not less than four weeks of vacation.
Executive's compensation shall be paid in full during such vacations. Each
vacation shall be taken by Executive at such times as are reasonably
agreeable to Executive and the Company. Any vacation Executive shall have
taken in 2002 prior to the Commencement Date shall be aggregated with any
vacation Executive takes in 2002 on or after the Commencement Date for
purposes of calculating the four weeks of vacation for calendar year 2002.
(e) Expenses. The Company shall reimburse Executive for all
reasonable out of pocket expenses incurred by him in connection with the
performance of his duties hereunder, which reimbursement shall be made
upon the presentation by Executive to the Company of proper receipts or
other proof of expenditure, and otherwise in accordance with the Company's
standard practices (applied prospectively only) for reimbursement of its
senior executives as determined by the Board of Directors.
(f) Other Benefits. Executive shall be entitled to such
additional perquisites as may be customarily granted by the Company to its
senior executives generally.
(g) Prior Option Grants. The parties acknowledge that the
following option grants are outstanding and, subject to the terms and
conditions of the Stock Option Agreements relating to such option grants
and the terms and conditions of the Company's 1999 Amended and Restated
Stock Option Plan, bear the following terms:
Number of Exercise Price
Date of Grant Shares Per Share Vesting
------------- ------ --------- -------
March 15, 1996 250,000 $1.50 Fully Vested
July 23, 1998 250,000 2.75 Fully Vested
July 23, 1998 250,000 2.75 Vest as described in
the grant agreement
This Agreement shall not adversely affect any vested rights with respect
to any of these option grants which may arise prior to the termination of
the Employment Period.
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5. TERMINATION. The Employment Period shall terminate upon the effective
date of the earliest to occur of the following events:
(a) Just Cause. The Company may terminate Executive's
employment hereunder at any time for "JUST CAUSE" (as such term is
hereinafter defined), effective as of the date the Company gives written
notice to Executive setting forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination ("NOTICE OF
TERMINATION"). As used herein, the term "JUST CAUSE" means:
(i) Executive's conviction of or entry of a plea of
guilty or nolo contendere to a felony (unless the act giving rise
thereto was committed by Executive in the good faith belief that
Executive's actions (A) were in the best interest of the Company,
and (B) would not violate criminal law), or other criminal act
involving moral turpitude;
(ii) Executive's willful misconduct or gross negligence
resulting in a material breach of his duties hereunder (including
fiduciary duties and such other duties relating to his employment by
the Company as are imposed by applicable law), or any other willful
and material breach by Executive of this Agreement, except by reason
of illness or accident, which shall continue for a period of 15 days
after the receipt of written notice from the Company;
(iii) A material conflict of interest that arises
because Executive is directly or indirectly a party to a transaction
with the Company, except for a material conflict of interest of
which the Company has been notified and the Company has agreed to
allow;
(iv) Executive's refusal, after receipt of written
notice from the Board of Directors, to perform specific directives
of the Board of Directors which are reasonably intended to cause the
Company to comply with applicable laws, rules, regulations, requests
of government agencies, or the like, provided that such directives
are consistent with applicable law and the scope and nature of
Executive's duties as set forth herein, or to comply with the
written internal policies and procedures of the Company and its
subsidiaries; and
(v) Executive's habitual drunkenness or illegal use of
controlled substances which interferes with the performance of his
duties hereunder.
(b) Death or Disability. The Employment Period shall terminate
automatically, effective upon the death of Executive. If Executive is
unable to perform the essential functions of his employment position, due
to a disability of Executive that cannot be reasonably accommodated by the
Company, the Company may terminate Executive's employment hereunder
effective as of the date the Company gives Notice of Termination to
Executive.
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(c) By Executive. Executive may terminate his employment
hereunder at any time, with or without Good Reason (as defined in SECTION
6(c)), effective upon written notice to the Company, which notice shall
set forth in reasonable detail the facts and circumstances claimed to
provide a basis for any termination with Good Reason.
(d) Without Cause. The Company may terminate Executive's
employment hereunder at any time, with or without Just Cause, effective
upon written notice to Executive.
6. SEPARATION BENEFITS. Executive shall be entitled to receive separation
benefits in such events and in such amounts as are set forth in this SECTION 6.
(a) Termination Without Just Cause or for Good Reason. If
Executive's employment hereunder is terminated during the Employment
Period (x) by Executive for Good Reason (as defined below in SECTION
6(c)); or (y) by the Company without Just Cause, he (or his surviving
spouse, estate or personal representative, as applicable) shall be
entitled to receive:
(i) all accrued but unpaid Base Amount through the
Termination Date;
(ii) a lump sum cash payment in an amount equal to the
annual Bonus, if any, to which the Compensation Committee determines
in its reasonable discretion that Executive would have been entitled
in accordance with SECTION 4(b), without discount, had he continued
in the employ of the Company for the full fiscal year in which his
employment is terminated, pro rated on a daily basis through the
Termination Date, payable by the Company in accordance with the
terms of SECTION 4(b);
(iii) for the longest period of time as is permitted by
COBRA law, the Company shall permit, at the Company's expense,
Executive, his spouse and dependents, as applicable (the "BENEFIT
PARTICIPANTS"), to participate in all group medical and health
insurance plans and employee benefit plans, programs and
arrangements now or hereafter made available to the senior executive
employees of the Company (the "PLANS") (including but not limited to
such Plans in which Executive was entitled to participate, pursuant
to SECTION 4(c), immediately prior to the date of termination), in
the same manner provided to its other senior executive employees;
provided, however, that this SECTION 6(a)(iii) shall not apply in
the event that (A) the Company shall hereafter terminate the
applicable Plan or (B) the participation of the Benefit Participants
in such Plan is prohibited by law or, if applicable, would
disqualify such Plan as a tax qualified plan pursuant to the Code
(as defined in SECTION 9), or (C) the participation of the Benefit
Participants violates the general terms and provisions of such
applicable Plan. In the event that any of the Benefit Participants'
participation in such Plans is prohibited by law or, if applicable,
would disqualify the Plan as a tax qualified plan, the Company shall
permit the Benefit Participants to acquire substantially
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comparable coverage or benefits, at the Company's expense, from a
source of Executive's or his spouse's choosing, notwithstanding the
fact that such coverage or benefit will result in a higher cost than
if provided under a Company Plan; however, in no event will the
Benefit Participants receive from the Company the coverage and
benefits contemplated by this SECTION 6(a)(iii) if the Benefit
Participants receive such coverage and benefits from any other
source; and
(iv) the Termination Payment (as defined in SECTION 9).
(b) Other Termination Events. In the event that Executive's
employment hereunder is terminated during the Employment Period (i) by the
Company with Just Cause, (ii) by Executive without Good Reason, or (iii)
upon the death or disability of Executive, then Executive thereupon shall
forfeit his right to any compensation, perquisites and benefits under this
Agreement, provided, however, that the Company shall pay to Executive (or
if he shall have died, his surviving spouse, or if he leaves no spouse,
his personal representative, as successor in interest) the value of any
accrued salary and other compensation due to Executive pursuant to SECTION
4 above through the Termination Date. This Agreement shall not adversely
affect any vested rights with respect to Company benefits which may arise
prior to the termination of the Employment Period.
(c) Good Reason Defined. For purposes of this Agreement, "GOOD
REASON" means the occurrence during the Employment Period of any of the
following: (i) a reduction in Executive's title, duties or working
conditions without Executive's consent, (ii) a decrease in the Base
Amount; or (iii) the relocation of Executive's office to premises located
outside of the Greater Chicago, Illinois Metropolitan Area; or (iv) a
failure by the Company to comply with any material provision of this
Agreement which has not been cured within 15 days after written notice of
such noncompliance has been given by Executive to the Company; or (v) a
Sterling Exit (as defined in SECTION 9); or (vi) a Change in Control (as
defined in SECTION 9).
(d) Effect of Termination. Notwithstanding anything to the
contrary contained herein, should Executive's employment with the Company
be terminated during the Employment Period for any reason whatsoever:
(i) Anti-Disparagement, Etc. The Company (on behalf of
itself and its directors, officers, employees and agents) and
Executive agree that they will not, under any circumstances,
disparage, criticize or denigrate the talents, skills, prospects,
abilities, integrity or character of Executive, the Company, its
management, directors, employees, agents or representatives
(including those of the Company's affiliates). They further agree
that they will not, at any time after the date hereof and without
the other's written consent, contact any past, present or
prospective customer, supplier, employee, employer or agent or
representative of the Company or Executive with the intent or
purpose of injuring the reputation, business or business
relationships of the Company or Executive. The provisions of this
SECTION 6(d) shall survive the execution and termination hereof,
irrespective of the reason for such termination.
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(ii) Offices, Etc. Executive will no longer have an
office at the Company's places of business, and except as previously
agreed in writing by the Company or as requested by the Company in
accordance with SECTION 7(b), will not visit such places. In
addition, Executive will resign from all offices or directorships
held with the Company or any of its subsidiaries at the time of
termination.
7. ADDITIONAL OBLIGATIONS.
(a) Change in Control. If a Change in Control (as defined in
SECTION 9) occurs after the Commencement Date but prior to the Termination
Date (unless Executive is terminated by the Company without Just Cause, in
which case the relevant date shall be the 120th calendar day after the
Termination Date), then the Company will pay to Executive, upon the
consummation of such Change in Control, (i) $183,796.50, plus (ii) an
amount equal to (x) the Termination Payment, minus (y) any portion of the
Termination Payment previously paid to Executive.
(b) Covenant of Cooperation. During the Employment Period and
for a period of 120 days after the Termination Date, Executive shall
cooperate and provide such assistance as may reasonably be requested by
the Board of Directors in connection with any proposed Change in Control
or any related due diligence matters.
(c) Release. As a condition to Executive's right to receive
any separation benefits or other compensation provided for or referenced
in SECTION 6 or in this SECTION 7, the Company shall require that (i)
Executive execute and deliver to the Company a general release, in the
form attached hereto as Exhibit 7(c), and (ii) Executive shall not be in
breach of the terms of SECTION 7(b) or SECTION 8.
8. RESTRICTIVE COVENANTS. Executive hereby agrees:
(a) Nondisclosure. Executive acknowledges that he has been and
will be entrusted with trade secrets, marketing, operating and strategic
plans, customer and supplier lists, proprietary information and other
confidential or specialized data and/or information relative to the
business of the Company and its predecessors and subsidiaries (for
purposes of this SECTION 8, the "COMPANY" shall include its predecessors
and subsidiaries), whether now existing or to be developed or created
after the date of this Agreement (collectively, "TRADE SECRETS").
Executive shall at all times during the Employment Period and thereafter
hold in strictest confidence any and all Trade Secrets that may have come
or may come into his possession or within his knowledge concerning the
products, services, processes, businesses, suppliers, customers and
clients of the Company or its affiliates and their predecessors. Executive
agrees that neither he nor any person or enterprise controlled by him will
for any reason directly or indirectly, for himself or for the benefit of
any other person, use, copy, divulge or otherwise disseminate or disclose
any of the Trade Secrets owned or used by, or licensed to, the Company or
any of its affiliates or otherwise relating to the Company or its
business, provided that Executive may disclose Trade Secrets pursuant to
an order by a court of competent jurisdiction, provided, further, that
Executive shall give the Company notice of such
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order and any court pleading requesting such disclosure, in order to
provide the Company with an opportunity to prevent such disclosure or
procure an appropriate protective order.
(b) Customers. Executive acknowledges that customer accounts
of the Company and its predecessors are and will at all times be the sole
and separate property of the Company, in which Executive has no rights
whatsoever, and all activities of or work performed by Executive pursuant
hereto or as an employee of the Company or its predecessors have been and
in the future will be performed for the benefit of the Company and the
goodwill resulting from Executive's efforts is and at all times will be
the sole and separate property of the Company, which goodwill is intended
to be protected, in part, by this SECTION 8.
(c) Non-Solicitation. Executive agrees that during the
Covenant Period, neither he nor any person or enterprise controlled by him
will solicit or hire or contract with, for employment, consulting or any
other reason, any director, officer, shareholder, department head,
salesman and each of their assistants who was employed by the Company or
its predecessors at any time within one year prior to the time of the act
of solicitation or hire. The Company acknowledges that this provision
shall not prohibit any entity with which Executive is associated following
termination of the Employment Period, but which he does not control, from
employing any former employee of the Company who responds to any general
advertisement not targeted specifically to such person.
(d) Non-Competition. Executive agrees that during the Covenant
Period, neither he or any person or enterprise controlled by him will
become a stockholder, director, officer, agent, employee or representative
of or consultant to a corporation or member of a partnership, engage as a
sole proprietor in any business, act as a consultant to any of the
foregoing or otherwise engage directly or indirectly in any enterprise
which competes with the Company in any business in which the Company is
engaged (whether or not such business is subsequently carried on by the
Company) in any geographic territory in which the Company does business on
the date the Employment Period ends (the "TERRITORY"); provided, however,
that the foregoing shall not prohibit the ownership of less than two
percent (2%) of the outstanding shares of the stock of any company engaged
in any business, which shares are regularly traded on a national
securities exchange or in any over-the-counter market.
(e) Survival. The provisions of this SECTION 8 shall survive
the termination of this Agreement and Executive's employment with the
Company, irrespective of the reason therefor.
(f) Blue-Pencil. If any court of competent jurisdiction shall
at any time deem the term of this Agreement or any particular Restrictive
Covenant (the "RESTRICTED PERIOD") too lengthy or the Territory too
extensive, the other provisions of this SECTION 8 shall nevertheless
stand, and the Restricted Period shall be deemed to be the longest period
permissible by law under the circumstances and the Territory shall be
deemed to comprise the largest territory permissible by law under the
circumstances. The
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court in each case shall reduce the Restricted Period and/or the Territory
to permissible duration or size.
9. DEFINITIONS. As used in this Agreement:
"AFFILIATE" means any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated association or other
entity (other than the Company) that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with, the
Company including, without limitation, any member of an affiliated group of
which the Company is a common parent corporation as provided in Section 1504 of
the Code.
"CHANGE IN CONTROL" means the happening of any of the following
events:
(a) An acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act
of 1934, as amended (the "EXCHANGE ACT")) of the beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of
fifty percent (50%) or more of the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in
the election of directors (the "OUTSTANDING COMPANY VOTING SECURITIES");
provided, however, that for purposes of this subsection (a), the following
acquisitions shall not constitute a Change in Control: (A) any acquisition
by the Company or by an employee benefit plan (or related trust) sponsored
or maintained by the Company or an Affiliate, (B) any acquisition by a
lender to the Company pursuant to a debt restructuring of the Company, or
(C) a Non-Control Transaction;
(b) A change in the composition of the Board of Directors such
that the individuals who, as of the date hereof, constitute the Board of
Directors (such Board of Directors shall be hereinafter referred to as the
"INCUMBENT BOARD") cease for any reason to constitute at least a majority
of the Board of Directors; provided, however, for purposes of this clause
(b), that any individual who becomes a member of the Board of Directors
subsequent to the date hereof whose election, or nomination for election
by the Company's Executives, was approved by a vote of at least a majority
of those individuals who are members of the Board of Directors and who
were also members of the Incumbent Board (or deemed to be such pursuant to
this provision) shall be considered as though such individual were a
member of the Incumbent Board; but, provided, further, that any such
individual whose initial assumption of office occurs as a result of either
an actual or threatened election contest (as such terms are used in Rule
14a-11 of Regulation 14A promulgated under the Exchange Act) or other
actual or threatened solicitation of proxies or consents by or on behalf
of a Person other than the Board shall not be so considered as a member of
the Incumbent Board;
(c) Consummation of a reorganization, merger or consolidation
or sale or other disposition of all or substantially all of the assets of
the Company (a "CORPORATE TRANSACTION"), in each case, unless the
Corporate Transaction is a Non-Control Transaction; or
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(d) Approval by the Executives of the Company of a complete
liquidation or dissolution of the Company.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COVENANT PERIOD" means the period of time beginning on the
Commencement Date and continuing through, and including, (i) for purposes of
SECTION 8(c), the third anniversary of the Termination Date, and (ii) for
purposes of SECTION 8(d), the second anniversary of the Termination Date;
provided, however, if Executive's employment is terminated by the Company
without Just Cause prior to a Change in Control, and a definitive agreement with
respect to a Change in Control is not executed by the Company within 120 days
after the Termination Date, the Covenant Period for each of SECTIONS 8(c) and
8(d) shall expire on the 120th day following the Termination Date.
"NON-CONTROL TRANSACTION" means a Corporate Transaction as a result
of which the Outstanding Company Voting Securities immediately prior to such
Corporate Transaction would entitle the holders thereof immediately prior to
such Corporate Transaction to exercise, directly or indirectly, more than fifty
percent (50%) of the combined voting power of all of the shares of capital stock
entitled to vote generally in election of directors of the corporation resulting
from such Corporate Transaction immediately after such Corporate Transaction
(including, without limitation, a corporation which as a result of such
transaction owns the Company or all or substantially all of the Company's assets
either directly or through one or more subsidiaries).
"PERSON" means any individual, corporation, trust, proprietorship,
association, governmental body, agency or subdivision or other entity.
"STERLING EXIT" means that Douglas Becker, Eric D. Becker, Merrick
M. Elfman, Bruce Goldman, Rudolf Christopher Hoehn-Saric, and Steven M. Taslitz,
as well as their spouses and dependent children or trusts established for their
benefit, have reduced their aggregate beneficial ownership of the Company's
Common Stock to less than fifteen percent (15%).
"STIPEND PERIOD" means the period of time beginning on the
Commencement Date and ending on the first to occur of: (i) the termination of
Executive's employment hereunder (A) by the Company with Just Cause, (B) by
Executive without Good Reason, or (C) upon the death or disability of Executive,
(ii) the 180th day following a Termination Date, or (iii) a Change in Control.
"TERMINATION DATE" means the effective date of any termination of
Executive's employment under this Agreement.
"TERMINATION PAYMENT" means an amount equal to $183,796.50, payable
over six (6) months in accordance with the Company's payroll practices.
10. REMEDIES. Executive acknowledges and agrees that the covenants set
forth in SECTION 8 of this Agreement (collectively, the "RESTRICTIVE COVENANTS")
are reasonable and
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necessary for the protection of the Company's business interests, that
irreparable injury will result to the Company if Executive breaches any of the
terms of the Restrictive Covenants, and that in the event of Executive's actual
or threatened breach of any such Restrictive Covenants, the Company will have no
adequate remedy at law. Accordingly, if at any time, Executive violates or
threatens to violate to any material extent the covenants set forth in SECTION
8, the Company shall have the right to seek injunctive relief or any other
appropriate equitable remedy, without any bond or other security being required,
in any federal or state court sitting in the City of Chicago, Illinois,
notwithstanding the arbitration obligations set forth in SECTION 18 below,
provided, however, that the applicable time periods set forth in SECTION 8 will
be tolled pending the final resolution of any such action that is actually filed
by the Company.
11. INVENTIONS. Executive hereby assigns to the Company all of his rights,
title and interest in and to all inventions, discoveries, processes, designs,
marketing strategies, and other intellectual property (hereinafter referred to
collectively as the "INVENTIONS"), and all improvements on existing Inventions
made or discovered by Executive during the Employment Period. Promptly upon the
development or making of any such Invention or improvement thereon, Executive
shall disclose the same to the Company and shall execute and deliver to the
Company such reasonable documents as it may request to confirm the assignment of
Executive's rights therein and, if requested by the Company, shall assist the
Company in applying for and prosecuting any patents which may be available in
respect thereof. The Company acknowledges and hereby notifies Executive that
this SECTION 11 does not apply to an Invention for which no equipment, supplies,
facility or trade secret information of the Company was used and which was
developed entirely on Executive's own time, unless (a) the Invention relates to
(i) the business of the Company, or (ii) the Company's actual or demonstrably
anticipated research or development, or (b) the Invention results from any work
performed by Executive for the Company.
12. EFFECTIVENESS OF THIS AGREEMENT; ENTIRE AGREEMENT.
(a) The Original Agreement shall continue in effect until it
is terminated or it expires in accordance with its terms.
(b) If the Original Agreement is terminated prior to its
expiration for any reason, then, notwithstanding anything to the contrary
in this Agreement, this Agreement shall be void and have no force and
effect.
(c) This Agreement contains the entire agreement and
understanding of the parties relating to the subject matter hereof, and
unless the Original Agreement is terminated prior to its expiration for
any reason, upon the Commencement Date, this Agreement shall supersede the
Original Agreement and all other prior discussions, agreements, and
understandings between the parties, relating to the subject matter hereof.
(d) Notwithstanding anything to the contrary in this
Agreement, this Agreement shall not be effective unless (i) the Company
receives BOCP's written approval of this Agreement in accordance with the
BOCP Amendment, or (ii) BOCP fails to grant or deny approval of this
Agreement to the Company in writing within ten business days of BOCP's
receipt of the Company's request for approval, which is deemed to be
BOCP's prior written approval in accordance with the BOCP Amendment.
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In furtherance of the foregoing, the Company agrees that within five
business days after Executive's execution of this Agreement it will submit
this Agreement to BOCP with a written request for BOCP's required approval
under the BOCP Amendment. If BOCP denies approval of this Agreement, then,
notwithstanding anything to the contrary in this Agreement, this Agreement
shall be void and have no force and effect.
13. AMENDMENT AND TERMINATION. This Agreement may not be amended or
otherwise modified, except in a definitive writing signed by the parties hereto.
14. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if given in writing and personally delivered or
sent by registered or certified mail, return receipt requested, or by facsimile,
telegram or telex followed by a confirmation letter sent by registered or
certified mail, return receipt requested, addressed as follows:
If to the Company: Atlantic Premium Brands, Ltd.
650 Dundee Road, Suite 370
Northbrook, Illinois 60062
Attn: Merrick Elfman
Facsimile: (847) 480-0199
If to Executive: Alan F. Sussna
1293 Westmoor Trail
Winnetka, Illinois 60093
With a copy to: Schiff Hardin & Waite
6600 Sears Tower
Chicago, Illinois 60606
Attn: Max G. Brittain, Jr.
Facsimile: (312) 258-5600
15. NONASSIGNMENT. The interests of Executive under this Agreement are
unique and of a personal service nature, are not subject to the claims of his
creditors and may not be voluntarily or involuntarily assigned, alienated or
encumbered.
16. SUCCESSORS. This Agreement shall be binding upon, and inure to the
benefit of, the Company and its successors and assigns and upon any person
acquiring, whether by merger, consolidation, purchase of assets or otherwise,
all or substantially all of the Company's assets and business.
17. SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable, either in its entirety or by virtue of its scope or application
to given circumstances, such provision shall thereupon be deemed modified only
to the extent necessary to render same valid, or not applicable to given
circumstances, or excised from this Agreement, as the situation may require, and
this Agreement shall be construed and enforced as if such provision had been
included herein as so modified in scope or application, or had not been included
herein, as the case may be. Should this Agreement, or any one or more of its
provisions hereof, be held to be invalid, illegal or unenforceable within any
governmental jurisdiction or subdivision thereof, the
12
Agreement or any such provision or provisions shall not as a consequence thereof
be deemed to be invalid, illegal or unenforceable in any other governmental
jurisdiction or subdivision thereof.
18. RESOLUTION OF DISPUTES. Except as provided in SECTION 10 above, any
dispute arising out of, connected with, related or incidental to this Agreement
and the documents or instruments delivered in connection herewith, shall be
submitted to arbitration in accordance with the terms of this SECTION 18. The
party who is alleging that a dispute exists (the "COMPLAINANT") shall send a
notice of such dispute to the other party (the "RESPONDENT"), which notice shall
set forth in detail the dispute, the parties involved and the position of the
Complainant with respect thereto.
The notice shall also include a list of five retired judges selected
through JAMS-Endispute, Inc. ("JAMS"), 70 West Madison, Chicago, Illinois.
Within seven days of receiving such notice, the Respondent shall either accept
one of the judges on the list and so inform the Complainant or deliver via
facsimile to the Complainant a list of five judges selected by the Respondent
from the panel at JAMS. If the Respondent rejects the judges on the
Complainant's list and delivers to Complainant its own list of judges,
Complainant, within seven days of receiving Respondent's list, shall inform
Respondent as to whether it will accept one of the judges on Respondent's list.
Should the parties be unable to agree on an arbitrator, then Complainant
shall request that JAMS furnish a list of ten names of available judges to each
party. Within seven days of JAMS's mailing of the list, the parties shall meet
telephonically to designate an arbitrator. Respondent shall first strike one
name from the list and then Complainant shall strike one name. Thereafter,
Respondent and Complainant shall alternately strike names from the list until
one name remains. The last remaining judge on the list shall be designated as
the arbitrator for this action.
The arbitrator so selected shall schedule a hearing in Chicago on the
disputed issues within 45 days after his appointment, and the arbitrator shall
render his decision after the hearing, in writing, as expeditiously as is
possible, and such decision shall be delivered to the parties. The arbitrator
shall render his decision based on written materials supplied by the parties to
the arbitrator as well as the respective oral presentations of the parties at
the hearing, and no party shall be entitled to discovery in such matter, except
for a single request for documents to be made within ten days after the request
for arbitration, which if not made within such time period shall be deemed
waived. Each party shall supply a copy of any written materials to be submitted
to the arbitrator at least ten days prior to the scheduled hearing. The parties
agree that the arbitrator shall not have any power or authority to award
punitive damages. A default judgment may be entered against any party who fails
to appear at the arbitration hearing. Such decision and determination shall be
final and unappealable and shall be filed as a judgment of record in any
jurisdiction designated by the successful party. All charges and fees charged by
JAMS and/or the arbitrator (whether demanded in advance or at completion of the
proceedings) shall be shared equally by each side. However, all such charges and
fees, as well as any other taxable costs, may be allocated between the
respective sides by the arbitrator as a part of any award herein. The parties
hereto agree that this paragraph has been included to rapidly and inexpensively
resolve any disputes between them with respect to the matters described above,
and that this paragraph shall be grounds for dismissal of any court action
commenced by any
13
party with respect to a dispute arising out of such matters. The parties agree
that any arbitration shall be governed by and pursuant to the Illinois Uniform
Arbitration Act, as amended, and the rules and regulations promulgated
thereunder.
19. INSURANCE. The Company may, at its election and for its benefit,
insure Executive against disability, accidental loss or death and Executive
shall submit to such physical examinations and supply such information as may be
required in connection therewith.
20. NO CONFLICTING AGREEMENTS. Executive represents and warrants that he
is not a party to any agreement, contract or understanding, of any kind, that
would in any way restrict or prohibit him from undertaking or performing
employment in accordance with the terms and conditions hereof.
21. COUNTERPARTS. This Agreement may be executed in counterparts, all of
which taken together shall constitute one and the same original agreement of the
parties hereto.
22. GOVERNING LAW. This Agreement, and all matters or disputes relating to
the validity, construction, performance or enforcement hereof, shall be
governed, construed and controlled by and under the laws of the State of
Illinois without regard to principles of conflicts of law.
23. CONSENT TO JURISDICTION. The parties hereto hereby irrevocably submit
themselves to the exclusive jurisdiction of the courts of the State of Illinois
located in the City of Chicago and to the jurisdiction of the United States
District Court for the Northern District of Illinois for the purpose of bringing
any action that may be brought in connection with the provisions hereof and
shall not assert any claim that they are not subject to the jurisdiction of such
courts, that the venue is improper, that the forum is inconvenient or any
similar objection, claim or argument. Service of process on any of the parties
hereto with regard to any such action may be made by mailing the process to such
party by regular or certified mail to the address of such party set forth herein
or to any subsequent address to which notices shall be sent.
14
IN WITNESS WHEREOF, Executive has set his hand to this Amended and
Restated Employment Agreement, and the Company has caused these presents to be
executed in its name and on its behalf, all as of the day and year first above
written.
THE COMPANY:
ATLANTIC PREMIUM BRANDS, LTD.
By: /s/ Merrick M. Elfman
------------------------------------
Name: Merrick M. Elfman
Title: Chairman
EXECUTIVE:
/s/ Alan F. Sussna
----------------------------------------
Alan F. Sussna
15
EXHIBIT 7(c)
MUTUAL GENERAL RELEASE
This MUTUAL GENERAL RELEASE ("GENERAL RELEASE") is made as of
____________, by and between Alan F. Sussna ("EXECUTIVE") and Atlantic Premium
Brands, Ltd., a Delaware corporation ("COMPANY").
WHEREAS, the Company and Executive have entered into an Amended and
Restated Employment Agreement, dated as of ________, 2001 (the "EMPLOYMENT
AGREEMENT").
WHEREAS, in consideration of Executive's entering into the Employment
Agreement and as a condition to Executive's right to receive any separation
benefits or other compensation provided for or referenced in Section 6 or
Section 7 of the Employment Agreement, Executive and Company have agreed to
execute and deliver this General Release.
NOW, THEREFORE, in consideration of the premises, and the respective
mutual agreements and covenants contained herein, the parties agree as follows:
1. EXECUTIVE'S RELEASE.
1.1 In consideration of the Company's payment of the separation
benefits and other compensation provided for or referenced in Section 6 and
Section 7 of the Employment Agreement, and for good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Executive, for
himself and each of his executors, successors, and assigns (collectively, the
"SUSSNA RELEASORS"), hereby forever releases Company and each of its
predecessors, successors, and past and present shareholders, directors,
officers, employees, subsidiaries, affiliates, agents and representatives
(collectively, the "COMPANY RELEASED PARTIES") from any and all claims, demands,
and causes of action of every kind and nature, including, without limitation,
those relating to or arising out of the Original Agreement (as such term is
defined in the Employment Agreement) or the Employment Agreement or any
employment-related claims Executive may have, including, without limitation,
claims brought under the Civil Rights Act of 1964, as amended, the Civil Acts
Rights Act of 1991, the Age Discrimination in Employment Act, the Employee
Retirement Income Security Act, the Americans with Disabilities Act and any
other federal, state or local laws regarding employment discrimination or
termination of employment or under the common laws of any state relating to
employment contracts, wrongful discharge, defamation or any other matter arising
under common law (the "SUSSNA RELEASED CLAIMS").
1.2 The Sussna Releasors hereby irrevocably agree to refrain from
directly or indirectly asserting any claim or demand or commencing (or causing
to be commenced) any suit, action, or proceeding of any kind, in any court or
before any tribunal, against any Company Released Party based upon any Sussna
Released Claim; provided, however, that nothing contained herein shall be
construed to limit in any way Sussna Releasors' right to enforce the terms of
the Employment Agreement and this General Release.
7(c)-1
1.3 This General Release shall not apply to or adversely affect any
vested rights to Company benefits which may arise prior to Executive's
termination from the Company, nor to any of Executive's rights under federal or
state law regarding the continuation of medical benefits, the Illinois Worker's
Compensation Act, the Illinois Occupational Diseases Act, or the Illinois
Unemployment Insurance Act.
2. COMPANY'S RELEASE.
2.1 In consideration of Executive's entering into the Employment
Agreement, and for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Company, for itself and each of its successors
and assigns (collectively, the "COMPANY RELEASORS"), hereby forever releases
Executive and each of his executors, successors, and past and present
affiliates, agents and representatives (collectively, the "SUSSNA RELEASED
PARTIES") from any and all known claims, demands and causes of action of every
kind and nature, including, without limitation, those relating to or arising out
of the Original Agreement or the Employment Agreement or any employment-related
claims Company may have (the "COMPANY RELEASED CLAIMS"); provided, however, that
in no event shall the Company Released Claims include any claim, demand or cause
of action relating to or arising out of any of the following (each, a "RETAINED
CLAIM"): (i) any conduct or inaction on the part of Executive that constitutes
fraud, intentional or willful misconduct or gross negligence, (ii) any conduct
or inaction on the part of Executive that would constitute the basis for a
termination for "JUST CAUSE," as such term is defined in the Employment
Agreement, regardless of whether the Company has terminated Executive therefor,
(iii) any breach of fiduciary duty, (iv) any derivative claim by any shareholder
on behalf of the Company, (v) any conduct or inaction on the part of Executive
that violates, or causes the Company or any affiliate thereof, to violate any
law, statute, ordinance, regulation, rule, contract, agreement or judicial order
or decree, (vi) any matter for which a Sussna Released Party has strict
liability, including, without limitation, Section 16 of the Securities and
Exchange Act of 1934, as amended, or (vii) any contract or agreement, Company
plan or policy to which Executive is a party or otherwise bound.
2.2 The Company Releasors hereby irrevocably agree to refrain from
directly or indirectly asserting any claim or demand or commencing (or causing
to be commenced) any suit, action, or proceeding of any kind, in any court or
before any tribunal, against any Sussna Released Party based upon any Company
Released Claim; provided, however, that nothing contained herein shall be
construed to limit in any way Company Releasors' right to enforce the terms of
the Employment Agreement, this General Release or any Retained Claim.
3. GOVERNING LAW. This General Release will be governed by and construed
in accordance with the laws of the State of Illinois, without regard to
conflicts of law principles. All words used in this General Release shall be
construed to be of such gender and/or number as the circumstances require.
4. BINDING OBLIGATIONS. This General Release has been duly executed and
delivered by Executive and the Company and the consummation of the transactions
contemplated hereby are within the powers of Executive and the Company. The
obligations
7(c)-2
under this General Release constitute the legal, valid and binding obligations
of Executive and the Company.
5. VOLUNTARY ACT. Each of the undersigned has read and understands this
General Release, has had the opportunity to consult with an attorney prior to
signing it, and voluntarily enters into it with full knowledge of its terms and
conditions and that such terms and conditions are binding on such party.
IN WITNESS WHEREOF, the undersigned have executed this General Release as
of the date first above written.
ATLANTIC PREMIUM BRANDS, LTD.
By: ____________________________________
Name:
Title:
________________________________________
Alan F. Sussna
7(c)-3